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Monday, March 13, 2006 

On Activism

Judicial activism is a term that gets thrown around a lot. In recent years especially, it's become one of those ubiquitous political phrases that is thrown around by both sides of the political spectrum. I cam across this letter in today's Milwaukee Journal Sentinel concerning judicial activism...
So much for liberal activist judge argument

Two letters to the editor in the March 5 Sunday Symposium referenced "liberal judges" or "judicial activism" in relation to previous court rulings on gay marriage bans across the country. Considering that well over 30 states have gay marriage bans or have passed resolutions stating marriage can only be between a man and woman, I guess activist judges have not been too successful in this case.

Now, we see that South Dakota has passed a very restrictive abortion law, with the intent to take it to the Supreme Court and overturn Roe vs. Wade. Based upon conservative logic in labeling judges as "activists," Justices John Roberts, Antonin Scalia, Samuel Alito, Clarence Thomas and any other judge who votes to overturn the existing law and precedent of Roe vs. Wade also becomes an activist judge. Correct?

The liberal activist judge argument is old, tired and about to be turned back against conservatives.

Eric Gass
I suppose that the definition of "judicial activism" is in the eye of the beholder. Oddly enough, part of an essay assigned in my American Constitutional History class asks us to define judicial activism. As far as the question posed by Mr. Gass, I would have to answer "incorrect". In my view, overruling an activist decision is not activism. It is correcting a mistake.

I think Mr. Gass is building a very weak strawman. He's saying that any time the Court overturns a precedent, it is acting activist (or at least, he is labeling his political opponents as thinking that way). I can't speak for everyone, but I see activism as something very different. Activism is when a judge ignores the text of a constitution or a statute and enacts his or her preferred policy judgment in a case. That is where the Constitutional problem lies with Roe. I've quoted this part of Justice White's dissent many times but it's right on the money...
I find nothing in the language or history of the Constitution to support the Court's judgment... The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
Even if you agree with the results of Roe, do you like the standard it sets? Do you want a court of nine people making broad policy decisions for the entire country? When this standard is set, we are all in danger. As we have seen in the last year, the make up of the Court changes. When it swings to the side of the political spectrum that you don't agree with, do you want the Court deciding these policy issues for you? Or would you rather leave this to the legislatures, which are electable (and defeatable)? I think that the answer is easy.

I tried explaining that to my sister. I told her that were Roe to be overturned, it would revert to a States rights issue, where it belongs. The duties of the Federal Government are strictly outlined in The Constitution. That they have exceeded the original intent is beyond argument. The same goes for the courts.

It's often quite a battle explaining that to someone. Whenever I do it, it usually involves a 15 minute lesson on the Constitution. The issue is never explained well enough by the media or schools. It's maddening.

Pardon this bit of conspiracy theory, but, I think it's not taught for a reason. An undereducated populace will give up their freedoms easier if they haven't a clue that they're losing them. Engineering social change is easier that way.

I'm not a huge fan of conspiracy theories, but I think you're on the right track. If people are ignorant about the text and history of the Constitution, they'll never question these things.

I can't tell you how many people are shocked that Article 1 Section 8 actually lists the powers of the federal government. The shock continues when I tell them how the Commerce Clause has been turned into a "do anything we want" clause for Congress.

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  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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